State v. Sam

• Decision Date: 10 October 2006
• Docket Number: No. 25795.,25795.
• Citation: 98 Conn.App. 13,907 A.2d 99
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Bunthan SAM.

907 A.2d 99

98 Conn.App. 13

STATE of Connecticut v. Bunthan SAM.

No. 25795.

Appellate Court of Connecticut.

Argued May 25, 2006.

Decided October 10, 2006.

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Emily Dean, certified legal intern, with whom were Timothy H. Everett, special public defender, and, on the brief, Todd D Fernow, and Peter Brown, Audrey Staropoli, Joseph Sconyers and James Wood, certified legal interns, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Joseph J. Harry, senior assistant state's attorney, for the appellee (state).

DIPENTIMA, ROGERS and MIHALAKOS, Js.

MIHALAKOS, J.

The defendant, Bunthan Sam, appeals from the judgment of conviction, rendered following a jury trial, of one count each of robbery in the first degree in violation of General Statutes § 53a-134(a)(3), burglary in the first degree in violation of General Statutes § 53a-101(a)(2), assault in the second degree in violation of General Statutes § 53a-60(a)(2), assault in the third degree in violation of General Statutes § 53a61(a)(1), and two counts of unlawful restraint in the first degree in violation of General Statutes § 53a-95(a).¹ On appeal, the defendant claims that the trial court improperly (1) deprived him of his constitutional rights (a) to be present at a critical stage of his prosecution and (b) to have conflict-free counsel, (2) failed to instruct the jury adequately and (3) violated his fifth amendment right against self-incrimination. The defendant also claims that the evidence was insufficient to convict him of robbery in the first degree and assault in the second degree. We conclude that there was sufficient evidence to convict the defendant, but agree with his first claim and, accordingly, reverse the judgment of the trial court.²

The following facts are relevant to the defendant's appeal. Shortly before 2 a.m. on October 30, 2003, the defendant, accompanied by his brother, Chandara Sam, and their friend, Vesna San, arrived at the home of Stanley D'Amato. The defendant, standing alone at the front door, rang the doorbell and asked Diane D'Amato, Stanley D'Amato's mother, if Stanley D'Amato would come to the door. When Stanley D'Amato arrived at the door, the defendant confronted him regarding an ongoing dispute between the defendant and Chandara Sam, and Stanley D'Amato's friend, Sandap Pauv. Chandara Sam and San then approached the house and joined in the confrontation. Stanley D'Amato asked the men to leave his home. Diane D'Amato, who was in the living room at the time, picked up a cordless telephone and dialed 911.

Noticing her call for help, San entered the house, grabbed the telephone from her, pushed her onto the couch and began beating her with the telephone. When Stanley D'Amato ran to his mother's aid, he was restrained by Chandara Sam, who forced him face down onto the couch. Both the defendant and Chandara Sam then physically attacked Stanley D'Amato. The incident was brief, and all three men ran from the house before the arrival of the Bridgeport police. The cordless telephone used in the attack never was recovered. After the men had fled, Stanley D'Amato noticed that he was bleeding. He was admitted to Bridgeport Hospital at approximately 2:20 a.m., where Michael Werdmann, a physician, treated him for two lacerations, one to his chest and one to his right calf. Additional facts will be set forth as necessary.

I

The defendant's first claim on appeal is that the court's inadequate inquiry into his defense counsel's potential conflict of interest violated his rights under the United States constitution. Specifically, the defendant maintains that the court (1) committed a structural error when it excluded the defendant from an in camera conference regarding the potential conflict of interest, depriving him of the right to be present at a critical stage of his prosecution, and (2) failed to remedy an actual conflict of interest. We agree with the defendant that the court improperly deprived him of the right to be present at a critical stage of his prosecution and that the deprivation amounted to a structural error warranting reversal of his conviction.

The record discloses the following additional undisputed facts and procedural history relevant to the defendant's first claim. The defendant and Chandara Sam, both arrested and charged following the incident, each retained attorney Jonathan Klein to represent them in the matter. Klein had represented the two brothers in previous criminal matters. Klein served as counsel in the present case for both the defendant and Chandara Sam from the time of their first appearances on November 7, 2003, until just prior to jury selection on March 9, 2004.

On March 9, 2004, before the start of jury selection, the court raised the issue of Klein's dual representation of the codefendants. The court addressed the defendant and Chandara Sam and inquired of them whether Klein had informed them of the potential problems inherent in joint representation. The record reflects that Chandara Sam answered in the affirmative but that the defendant gave no response.³ The court also asked whether they understood that each was entitled to his own independent counsel, to which both the defendant and Chandara Sam answered, "Yes."⁴ The court asked the prosecutor whether he could foresee any conflict of interest problems regarding Klein's representation of both defendants, and the prosecutor responded that he did see a potential problem. The prosecutor informed the court that Chandara Sam had made a written statement denying any wrongdoing in the incident and that the state was contemplating the use of that statement at trial. Chandara Sam's statement, the prosecutor explained, mentioned the defendant's name throughout; it placed the defendant at the scene at the time of the incident and referred to a plan in which the defendant had participated. Following the prosecutor's remarks, Klein notified the court that he had failed to obtain conflict of interest waivers from the defendant and Chandara Sam for his representation of them in the present matter.⁵ After receiving this information, the court thanked the attorneys for their candor and stated that it would hold a recess so that the defendants could change their clothing prior to the selection of a jury.

During the recess, outside the presence of the defendant and Chandara Sam, the court conferred with counsel regarding Klein's dual representation. When the recess had concluded, the court began by stating the following: "After discussion with counsel and the state's attorney, and after listening to the presentation of defense counsel, I thought that under the circumstances, it would be appropriate to sever the trial of [the defendant] and Chandara Sam. And it's my understanding that we're going to proceed with the trial of [the defendant], who is represented by Mr. Klein." The court then instructed Chandara Sam to obtain new counsel.⁶

Immediately following the court's ruling, Klein informed the court that the defendant had just disclosed to him that he also wanted to be represented by new counsel. The court canvassed the defendant regarding his desire to obtain new counsel. The defendant told the court that he no longer wanted to have Klein represent him. When the court asked why, the defendant stated: "I don't feel that I have a fair trial because I still owe him $7000 something dollars. I don't—I want a new lawyer, that's why." The court did not accept this reason as sufficient, explaining to the defendant that Klein was obligated to provide him with effective representation regardless of a money debt.

The court then asked the defendant whether he could think of any other reason why he did not want Klein to represent him, to which the defendant replied, "I just don't feel comfortable with him representing me," and stated that he also was concerned that some of the information Klein had told him about the case was not true, referring specifically to a letter from Klein telling him that the case had been transferred to New Haven when it had not been. The court assured the defendant that Klein had not misinformed him and that the case had been transferred to New Haven but subsequently was transferred back to Bridgeport.

The court asked the defendant again if he had any other concerns, but as the defendant started to answer, the court interrupted him, stating: "Well, I have every reason to believe that Mr. Klein—I have no reason to believe that he would not—he has been in this case for some time, you're in custody, it's important that you're—get your day in court. And I am sure that I will — that Mr. Klein will pursue this, your defense, as vigorously as possible and I expect the same. And I have no reason to believe that he would not do that. Okay." The defendant spoke up and stated yet another reason why he no longer wanted to be represented by Klein: "[Because] on the paper he said that I'm going to lose [the] trial, that's why . . . ." The court responded by stating with respect to Klein, "He'll do the best job he can. You're entitled to get your trial, and you're going to get it. You're not interested in pleading guilty, is that right? . . . All right, then, that's simple, you get a trial. Bring the panel in, please."

The defendant claims that the undisputed facts show that the court, informed of a potential conflict of interest, conducted an in chambers, off the record meeting with Klein and the prosecutor, during which the potential conflict of interest was discussed. He maintains that, pursuant to our Supreme Court's holding in State v. Lopez, 271 Conn. 724, 859 A.2d 898 (2004), the in camera inquiry into the conflict of interest of defense counsel constituted a "critical stage of the prosecution" and that the exclusion of the defendant amounted to a structural error mandating...